Recitation of the papers considered in reviewing the underlying motion as required by CPLR §2219(a) Papers Numbered Respondent’s Notice of Motion, Affirmation, Affidavits, and Exhibits in Support 1 Petitioner’s Affirmation in Opposition, and Exhibits in Support 2 Respondent’s Reply 3 DECISION AND ORDER Respondent Tenant La Catrina Mexican Restaurant Corp., (La Catrina) moves for an Order pursuant to CPLR §3025(b) granting leave to interpose an amended answer, adding a defense of legal impossibility, and thereafter deeming the proposed amended answer as served and filed. In opposition Petitioner Landlord 1163 Manor Realty LLC (1163 Manor) contends that the petitioner would be prejudiced should the Respondents motion be granted at this late hour. The motion was orally argued on April 5, 2024, on the digital record by FTR in courtroom 529A. Petitioner and Respondent appeared with counsel. Motion to Amend CPLR §3025 (b) provides: “Amendments and supplemental pleadings by leave. A party may amend his or her pleading or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court of by stipulations of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances. Any motion to amend or supplement pleadings shall be accompanies by the proposed amended or supplemental pleading clearly showing the changes or additions to be made to the pleading.” It has been well established that leave to amend a pleading shall be freely given, absent prejudice or surprise. CPLR §305 (c). “[T]he court, at any stage of the action, may permit a mistake, omission, defect or irregularity to be corrected, upon such terms as may be just.” (Medina v. City of New York, 167 AD2d 268, 269 (1st Dept 1990)); CPLR §2001. The trial court must “consider whether the proposed amendment prejudices or surprises the opposing party, or if it is palpably insufficient or patently devoid of merit.” (Beharrie v. MRAG Development, LLC, 210 AD3d 945, 945 (2d Dept 2022); see Sterling Nat. Bank v. American Elite Properties, Inc., 91 AD3d 581 (1st Dept 2012)). However, “[n]o evidentiary showing of merit is required under CPLR 3025(b).” (Beharrie, 210 AD3d 945, 945). Lateness alone is not sufficient to deny leave to amend the answer. (Seda v. New York City Hous. Auth., 181 AD2d 469 (1st Dept 1992) [although the respondent waited three years to amend the answer in the absence of demonstrable prejudice leave to amend the answer should have been granted.]). The court has “the discretionary power to extend the time to plead, or to compel acceptance of an untimely pleading “upon such terms as may be just.” provided that there is a showing of a reasonable excuse for the delay” pursuant to CPLR 3012 (d) (Emigrant Bank v. Rosabianca, 156 A.D.3d 468, 472, 67 N.Y.S.3d 175 [1st Dept. 2017]). When considering whether to grant a defaulting party relief pursuant to CPLR 3012 (d). a court will consider “the length of the delay, the excuse offered, the extent to which the delay was willful, the possibility of prejudice to adverse parties, and the potential merits of any defense” (id.). (See Gur Associates LLC v. Convenience on Eight Corporation, et. al., 2023 WL 9066020 [Civ Ct. NY Cty December 21, 2023]). Here, Respondent owner, Araceli Ramirez (Ramirez) and Marco Hernandez (Hernandez) appeared in court on December 12, 2023 unrepresented by counsel and required a Spanish Court Interpreter. Ramirez and Hernandez are Spanish speaking and non-English speaking business owners of named Respondent La Catrina Mexican restaurant. The Court issued an Order permitting respondents to obtain counsel and file an Answer on or before January 16, 2024. (Judge Lugo Order dated December 12, 2023). Respondents retained counsel after the first court appearance, and a Verified Answer with Counterclaims was filed on January 16, 2024, by Respondent’s counsel. Respondents filed its motion for leave to serve an Amended Answer on February 20, 2024, and attached a Proposed Answer asserting an affirmative defense of Legal Impossibility dated January 15, 2024. Petitioner filed its Reply to Counterclaims on February 1, 2024. In its Proposed Amended Answer, (Syed affirmation, ex. A). Respondent asserts Affirmative Defense of Legal Impossibility, stating in pertinent part: AS AND FOR A FIFTH AFFIRMATIVE DEFENSE — LEGAL IMPOSSIBILITY “Plaintiff’s request in the 10 Day Notice to Cure citing article 15.08 of the lease is a legal impossibility in the State of New York.” Here, this matter is in the early stages of litigation. No trial date has been set. In fact, petitioner recently substituted counsel on March 1, 2024. Respondents maintain that it will suffer substantial prejudice if it is not allowed to amend its answer and there will be no prejudice to Petitioner. Respondents affirm that its proposed additional defense of Legal Impossibility is asserted due to recently learning that the rent insurance required by landlord was allegedly impossible to obtain after speaking with various insurance brokers. Respondent’s counsel affirms that prior to bringing the instant motion he had previously advised Petitioner’s counsel of the legal impossibility of obtaining rent insurance and received no response from Petitioner’s counsel. (Syed affirmation, 19). Albeit, it is uncertain whether respondent’s counsel contacted current counsel or prior counsel for petitioner. Respondent contends that the breach of the lease alleged in petitioner’s notice to cure, “failure to obtain the required rent insurance pursuant to the lease,” is legally impossible as such insurance is unobtainable. (Syed affirmation, 19). In opposition, Petitioner alleges that it would suffer substantial prejudice should the motion be granted because Petitioner will be unable to obtain a proper rebuttal expert and obtain pretrial discovery. Petitioner also opposes alleging that it will lose all of its insurance coverage due to Respondents alleged non-compliance in violation of their lease. (Neuman affirmation,
